October 28, 2008

Ms. Elaine Kaplan, Esq.
Senior Deputy General Counsel in, NTEU
1750 H St, NW
Washington, DC 20006

Mr. Tim Hannapel
Office of General Counsel, NTEU
1750 H St, NW
Washington, DC 20006

Subject: Critique on your recent article
"Reinvigorating OSC: Suggestions for Next
Administration" and request for your active
assistance in advancing the objectives of OSC Watch

Dear Ms. Kaplan and Mr. Hannapel,

You are the former Special Counsel and Deputy
Special Counsel. You are licensed attorneys and
long-time employees of a government employee
union. I have closely read your recent 15 page
issue brief "Reinvigorating the US Office of
Special Counsel: Suggestions for the Next
Administration" which is issue brief of the
American Constitution Society for Law and
Policy. It is available on the internet at
< http://www.acslaw.org/files/Kaplan%20FINAL.pdf>.

I also read the recent article in "Government
Executive" that mentions the recent removal of
former Special Counsel Scott Bloch and summarizes
your suggestions for OSC. It is available on the internet at
< http://www.govexec.com/story_page.cfm?
articleid=41273&dcn=todaysnews >.

As you know, I contend OSC is, relatively
speaking, the most corrupt and corrupting agency
in our Country's history. It was created, along
with Merit Systems Protection Board, by the Civil
Service Reform Act of 1978. I contend that its
now 30-year long lawbreaking failure to protect
federal employees from agency violations of the
merit system principles (i.e., "prohibited
personnel practices (PPP's) and other agency
violations of law, rule or regulation under OSC's
investigatory jurisdiction has resulted in many
dysfunctional and corrupt federal workplaces, a
battered federal civil service, and a much
diminished and more threatened America.

OSC's lawbreaking has also created thousands of
direct victims - loyal, patriotic federal
employees who put professional duty to the public
welfare before their personal economies and who
were betrayed by OSC lawbreaking failure to
protect them from agency retribution.

OSC's lawbreaking has not occurred in a vacuum,
it was enabled by 30-year long lawbreaking
failure of US Merit System Protection Board to do
the statutory required oversight of OSC's
compliance with law in protecting the federal
employees who sought its protection.

Basically, OSC and MSPB nullified themselves, at
their creation in 1978, by
OSC's (mis)interpretations of its key duties to
protect the federal employees who sought its
protection and MSPB (mis)interpretation of one of
its primary duties to conduct "special studies"
focused on OSC's compliance with law and performance in protecting
them.

These fundamental misinterpretations include
(using the law's current numbering, which was
changed by the Whistleblower Protection Act of 1989):

1. OSC's claim that the reporting
requirements of 5 U.S.C. §1214(e) do not apply to
laws, rule, or regulation under OSC's
investigatory jurisdiction, meaning OSC never has
an unqualified requirement to formally report its
determinations of violations of law, rule, or
regulation under its investigatory
jurisdiction. It also means OSC has yet to make
a report per §1214(e), not in over 20,000
investigations it has conducted since 1989.

2. OSC's claim (one which is contrary to
Supreme Court precedent) that there is no such
thing as a "civil service rule." As a result,
OSC does not investigate or even consider if
agency directives (i.e. "civil service rules")
such as workforce discipline procedures,
grievance procedures, performance evaluation
procedures, etc were violated as part of a
PPP. By 5 U.S.C. §1216(a)(4), OSC has
jurisdiction over any agency "activities
prohibited by any civil service law, rule or regulation."
3. OSC's policy of not considering or
investigating, as part of its investigations of
PPP's, whether any agency "activities prohibited
by any civil service law rule or regulation" also
occurred. When OSC is conducting an
investigation of an alleged PPP, it only
considers whether a violation of 5 U.S.C.
§2302(b) occurred, unless the PPP complaint
specifically alleges violations of laws, rules,
or regulations under OSC's jurisdiction per
§1216(a)(4) occurred as part of the PPP or
separate complaint of "other prohibited activity" alleging them is
filed.
4. MSPB's claim that the "special studies"
it conducts per 5 U.S.C.§1204(a)(3) need not
focus on "whether the public interest in a civil
service free of PPP's is being adequately
protected." MSPB claims to have no opinion as to
whether it is, despite its statutory requirement
to regularly report its determination on this
point to the President and Congress. Since OSC
is, by law, the primary bulwark to protect
federal employees from PPP's, MSPB should have,
for the past 30 years been doing what it has yet
to do - conduct reviews of OSC's compliance with
law and performance in protecting federal
employees from PPP's. Had it done so, OSC
misinterpretations of law would have been exposed
and corrected almost 30 years ago - and the
federal civil service and America would be in a
much different and better place today.

Why Has This Gone On For 30 Years? Follow the Money!

Many people and organizations benefit, directly
or indirectly, from a broken, lawbreaking OSC and
an MSPB that enables it. This includes:

1) Government employee unions benefit -
their major selling point to their dues-paying
members (who are frequently only 10-15% of the
members of the bargaining unit) is dues-paying
members get more support in a negotiated
grievance procedure. Since by "election of
remedies" of 5 U.S.C. 7121 (added to the law in
1994), a federal employee must choose between an
OSC complaint, an MSPB appeal, or a negotiated
grievance, if OSC is not credible, the relative
attractiveness of the union negotiated grievance
process (and voluntarily paying union dues) increases.
2) Private sector attorneys who specialize
in federal employment law benefit. A broken,
lawbreaking OSC emboldens abusive federal
managers and results in more federal employees
seeking them out, cash in hand, to pursue remedies at EEO, MSPB, or
elsewhere.
3) "Good government groups" benefit as
concerned federal employees go to them with their
concerns about agency wrongdoing, because they
know they will not be protected from agency
retribution if they use established
channels. "Information is power" to these groups
and they trade their insider information with
Congress and media for access and influence,
which they need to secure you are age a person
funding from the relatively few foundations that provide much of
their funding.

4) Mainstream media benefits for the same
reasons the good government groups do - concerned
federal employee go to them with their concerns,
because they cannot trust OSC to protect them if
they use established channels.

I created OSC Watch < http://www.oscwatch.org> <
http://whsknox.blogs.com/osc>, with some others
who largely perceive things as I do, with three
limited objectives: 1) expose OSC's lawbreaking
and MSPB's enabling lawbreaking; 2) stop it; and
3) obtain some measure of justice for the
thousands of feds directly harmed by it - feds
who did not receive the nondiscretionary protection OSC owed them.

To return to your article - while I agree with
much of it, your analysis of OSC goes seriously
awry on page 9. Frazier v. MSPB, 672 F.2d (D.C.
Cir. 1982) was, in large part, legislatively
overturned by the Whistleblower Protection Act of
1989. OSC is no longer an "ombudsman" or
advocate for the merit system principles - it is
now specifically charged to "act in the
interests" of the employees who seek its
protection. It has a specific mandate to "that
employees should not suffer adverse consequences
as a result of PPP's." The law directs OSC
that "the protection of individuals who are the
subject to PPP's remains the paramount
consideration." See 5 U.S.C. §1201 "note,"
quoting from the "findings and purpose" section of the WPA.

While I agree that OSC does not have an
attorney-client relationship with complainants
and that OSC has discretion as a prosecutor in
seeking corrective action and/or disciplinary
action, I contend that OSC does not have
discretion as an investigator - it must
determine, for all the complaints it receives,
"whether there are reasonable grounds to believe"
the violation occurred and, if so, formally
report them to the involved agency, via a
permanent, public record, per §1214(e). It must
do this, unless OSC additionally makes the
discretionary determination that the violation is
one "which requires corrective action" and
formally reports both determinations per
§1214(b)(2)(B), thereby satisfying the §1214(e) reporting requirement.

So What?

While I do not consider you blameless in the
federal workplace disaster at OSC, you did
inherit OSC's now 30 year-long misinterpretations
of its key duties, which was enabled by MSPB's
misinterpretation of one of its key
duties. Regardless, there should be no
reasonable question about OSC proper
interpretation and full compliance with its
nondiscretionary duties to those who seek its
protection. There is now plenty of question and
the questions go back to OSC's creation.

You can help get these questions answered and, if
OSC has been, as I contend, fundamentally remiss
in its nondiscretionary duties to the 20,000 or
more federal employees who sought its protection
since 1978, you can help obtain some measure of
justice for those directly harmed. Or you can
ignore these claims and concerns and continue, in
the eyes of many, to defend the undefendable at
OSC, including your records there.

You have positive professional duties as
attorneys. As I understand the position of OSC
attorneys, because they consider OSC to be their
client, they are prohibited from "blowing
whistles" on their and OSC's lawbreaking by legal
ethics. On the other hand, I contend that they
are betraying both their oaths as attorneys and
their oaths as government employees by not
implementing the laws they are responsible to
implement, to protect federal employees who try
to do their duty, ethically and competently,
without fear or favor. I suggest you consult
with ethical experts in your profession in
deciding how to proceed in this matter.

I was raised Catholic and while I did not
personally experience abusive priests, I was
lucky because I was around some as a youth. The
scandal at OSC has some similarities to the
Catholic priest scandal - vulnerable people are
betrayed by those charged to protect them and the
system tries to stonewall. But the outrage of
those betrayed would not be deterred and the
stonewalling failed. I suggest the sense of
betrayal many feel to you and OSC should not be minimized.

Respectfully,

Joe Carson, PE
Chair, OSC Watch Steering Committee
10953 Twin Harbour Drive
Knoxville, TN 37934; 865-300-5831; jpcarson@...

From Bloomberg.com:

By Elizabeth Amon- Oct. 29 (Bloomberg)
ICO Seeks $949 Million Punitive Damages From Boeing

ICO Global Communications Holdings Ltd., which last week won a $370.6 million verdict against Boeing Co. over a failed agreement to build a satellite network, asked a jury for an additional $949 million in punitive damages.

Lawyers for ICO yesterday asked jurors in Los Angeles Superior Court to award $477 million against the Boeing Satellite Systems unit and $472 million against the parent company. The jurors last week found Boeing acted with malice, oppression or fraud, allowing ICO to seek punitive damages.

The amount should be substantial enough to ``punish Boeing and Boeing Satellite Systems and deter future misconduct,'' ICO lawyer Barry Lee told the jury. ``It shouldn't be a routine cost of business that can be passed on with little or no discomfort.''

The jurors on Oct. 21 agreed with ICO's arguments that Boeing unfairly demanded additional money to finish and launch the satellites, which Reston, Virginia-based ICO ordered to create mobile-phone connections to remote locations worldwide. The verdict was the fourth-largest in the U.S. this year, according to Bloomberg data.

McCain's Bermuda Triangle

A Navy Whistleblower is Shipped Off to Psychiatric Ward

By Ross Tuttle

October 28, 2008

Just six months after being rebuked by the Senate Ethics Committee for exercising "poor judgment" when he interfered with federal regulators on behalf of a wealthy donor, Senator John McCain engaged in activities that may have constituted an abuse of his office for personal gain.

In August 1991, McCain hosted a family reunion at the Bermuda Naval Air Station (BNAS) for at least seven days at taxpayer expense. McCain's entourage of eleven included his wife, Cindy, and several of his children. The trip took place as Washington was still dealing with the fallout from the Keating Five scandal, an episode that involved other improper luxury Atlantic-island trips for McCain.

McCain's junket to BNAS was first reported by ABC's Primetime Live in a postscript to a December 1992 story on Senior Petty Officer George Taylor, the whistleblower who exposed the use of the Navy base by top officials for nongovernmental purposes.

A March 1993 Navy Inspector General report, precipitated by the Primetime Live segment, as well as a BNAS log record and a new interview with Taylor corroborate and amplify the substance of ABC's story.

The Navy IG report, obtained by The Nation and never before made public, redacts the name of the "one U.S. Senator" who used BNAS as a "vacation site." But in an interview with The Nation, Taylor, who was stationed at BNAS from May to November 1992, confirms that the senator in question was John McCain. A log book from BNAS, also obtained by The Nation, lists McCain as the only senator to have stayed on the island between 1989 and 1992.

In his interview, Taylor now recounts a conversation he had with a military psychiatrist who examined Taylor in 1992 for a psychiatric evaluation ordered by his supervisor in the wake of the Primetime Live show, in an apparent act of retaliation for his whistleblowing. The anecdote raises the disturbing possibility that McCain's Senate office attempted to influence the outcome of Taylor's psychiatric evaluation.

In his 2002 memoir, McCain declared that he had learned from his mistakes in the Keating Five affair, writing, "I have carefully avoided situations that might even tangentially be construed as a less than proper use of my office." But this most recent disclosure casts doubt on that claim.

"It was a family reunion...and the guests included grown children from a prior marriage...and minor children...a baby and a nanny," the IG report says of the McCain family vacation--some aspects of which may have violated the law.

Taylor, who had been highly decorated for his service aboard the USS Antietam, was the chief of military police at BNAS, commanding a staff of about seventy MPs. Shortly after his arrival at BNAS, he came to recognize that rather than serving a strategic military purpose, the base functioned mainly as a taxpayer-subsidized vacation spot for high-ranking officials.

"We're not running a military installation," Taylor told ABC. "We're running a Howard Johnson's."

In accordance with Taylor's claims, the IG report counted an inordinately high number of officer and VIP visits for a base that had one plane and no ships, and that was, according to ABC, "a cold war military relic that has outlived its usefulness."

"The tally for our two-year period was 80 flag/general officers [admirals and generals] and 99 0-6's [captains or colonels]," the IG report said, in addition to a number of other VIP visitors, one of whom was McCain.

According to the report, McCain's trip was likely also the largest to the installation, as it was "the only identifiable case in which a visiting VIP...and guests required accommodations over and above the quarters" normally made available to visitors.

The operation at "Club Fed," as it was called by the MPs, was not cheap. The IG report estimates the cost for military flights to the island at about $6,000, but Taylor and other MPs say this doesn't account for indirect costs like maintenance, salaries and hangar space, which they believe bring the expense closer to $40,000 per flight. Taylor also learned that funds were diverted from security operations and poured into hospitality, and the Primetime Live segment reported that $53,000 was used to redecorate one of the guest cottages on the base in 1992.

Both the IG report and the Primetime Live segment make clear that military officers or military retirees--like McCain--and their dependents had been entitled to stay in BNAS guest quarters on a space-available basis. But their visits crossed the line when other military resources were used for nonofficial purposes.

And that's what happened on just about every trip, according to Taylor. "Once they arrive they have the government vans here, which provide the transportation. They have the drivers, maid service," Taylor told ABC in 1992.

"Sailors had been assigned to be [Cindy McCain's] driver, and they carried her bags after she went shopping at the expensive shops on the island," says Taylor now. "It's like they were her servants." Taylor, who was not at the base when McCain visited but had been extensively briefed about it by subordinates, said this situation was not unique to Mrs. McCain. "That was the case for admirals and generals and other high-ranking officials that were coming into the installation for supposed military and governmental purposes."

Taylor believes that this use of military resources violated the law. According to Title 31 USC 1349 Section B, it is illegal if an officer or employee of the US government "willfully uses or authorizes the use of a passenger motor vehicle or aircraft owned or leased by the United States Government (except for an official purpose...)."

Taylor told The Nation that he spoke up in part about the waste and abuse in Bermuda because he had seen a disturbing pattern. "They were closing all these bases stateside--like in Alabama, where I'm from, and good people were losing their jobs. And then, here's one that everyone's using, going to do their golfing weekends."

The conclusions in the IG report are also redacted, and it is not clear what the consequences of the report were or if McCain faced any reprimands or sanctions. Calls to McCain's campaign were not returned. But because of Taylor's disclosure and the ABC report, BNAS was shuttered in 1995 after the Navy conducted another investigation that showed that the base was not serving any military purpose.

There was other fallout as well. Shortly after Taylor blew the whistle, he was removed from his duties on the island. One month before the Primetime Live episode aired, he was ordered by his commanding officer to undergo a psychiatric evaluation.

Taylor had been a stellar serviceman, having received multiple commendations and superior evaluations and having exhibited no symptoms of psychological distress. He believes that the psychiatric evaluation was a punitive measure. "I don't think it's a coincidence at all," he told ABC. But his commanding officer, Capt. James Arnold, denied this to ABC.

In fact, the military had used psychiatric evaluations to discredit and stifle whistleblowers before. At the time, the Government Accountability Project (GAP) had been pushing Congress for years to address this type of abuse. According to GAP lawyer Tom Devine, "Taylor's ordeal was the straw that broke the camel's back"; in late 1992 Congress passed the Boxer Amendment to curb the use of mental health evaluations as retaliation against whistleblowers, though the practice still occurs.

In November 1992, Taylor was packed onto a jet and ordered to appear at the Naval Medical Center in Portsmouth, Virginia, to see psychiatrist Peter True and undergo a "fitness for duty examination." Dr. True evaluated Taylor on November 13 and arrived at the following diagnosis: "No psychiatric diagnosis at this time.

1) Patient is psychiatrically fit for duty.

2) He is fully responsible for his actions.

3) This is not a psychiatric problem. This is a problem between this member and his employer and needs to be worked out as such. There are no psychiatric contraindications to any administrative or legal action.

4) No psychiatric follow-up indicated."

According to Taylor, True also told him at the time, "You've really upset a lot of people." When Taylor asked the doctor what he meant, True replied, "I've been contacted before, but never in advance by a fleet commander's staff, a senator's staff and the secretary of the Navy's staff to try and influence my evaluation."

Neither McCain's office nor True responded to The Nation's requests for an interview to determine whether McCain's staff contacted True and attempted to influence the outcome of Taylor's psychiatric evaluation. But it was McCain's office that had reason to intervene.

According to the official "VIP Log Book" on the island, McCain was the only senator to have stayed on the island between 1989 and 1992.

McCain had also been a classmate at the Naval Academy of Adm. Henry Mauz, who was heavily implicated in the BNAS scandal. Admiral Mauz had used the excuse that he'd been conducting official business on the island, but a Pentagon official said of one of Mauz's junkets, "It was a golfing trip. That's why he got in trouble. It was allegedly a training trip, but they ended up golfing the whole time."

Tom Devine, one of Taylor's lawyers from the Government Accountability Project, speaking in an independent capacity, hopes for a more comprehensive and transparent inquiry into McCain's involvement in the matter.

"It was Senator McCain who made character an issue for the election. He says that Senator Obama should answer questions about associations from his distant past so that we can make a fair assessment about his character. But Senator McCain has some troubling questions to answer about his own behavior," says Devine. "It's one thing to go on a junket. It's another thing to have taxpayers finance a family reunion."

See related article:

Navy Drops Charges Against Sailor Who Complained of Base (March 29, 1994)

See Original Article Here:

http://www.thenation.com/doc/20081110/tuttle

**********************************************************************

Broken Oversight, Investigations & Justice Dept. Affect Whistleblowers

I recently, received an email from the group administrator of a
Whistleblower group I belong to chastising the group members about
only sending in posts of direct implication and interest to
whistleblowers, not notes on general corruption etc. This post is
about the problem of focus and scope of the focus and why the
patterns of corruption we see are indeed most germane to every
whistleblower, and everyone else who cares about integrity in
government and industry.

Advice from effective investigators: keep a broad focus while
digging for the details; follow the money, search for patterns and
connections. The problem may be bigger than you think.

One has to wonder about the true depth of manipulation of the various
arms of our Justice Department. It appears that there has been quite
a lot of this lately. I mean by that, finding that the FBI and
others have been turned away from certain cases, or types of cases,
and put onto selected other more convenient lines of investigation.
Another part of the pattern of operations by the current
Administration or their minions appears to be effective use of a "red
herring" as it gets investigators off chasing other demons, and helps
divert public attention from dangerous ground.

I have heard from some DoD whistleblowers that their experiences have
included, having initial response of shock and indignation over the
merits of the cases taken to law enforcement/ investigative personnel
(Justice and others) agencies. That followed by investigations
purposefully initiated with great energy and resolve by field
personnel accompanied by check backs and good communication, only to
have those law enforcement/investigative personnel inexplicably after
a few weeks become quite mute. These whistleblowers have further
explained that they have discovered the following kinds of things
have occurred:

a. Investigators were told to stop by higher ups, sometimes
quite a bit higher levels of management.
b. Investigators were loaded down with other work and told their
priorities, which did not include the whistleblower case of concern.
c. Investigators were removed from the case and another
investigator, in one case a very senior investigator are put on it
instead, one who appeared to be on marching orders to drag it out,
obstruct the investigation and make it "go away."
d. The whistleblowers have also reported that even though well
developed cases were turned over to the appropriate three or four
letter acronym agencies for criminal investigations, including lists
of people to be interviewed, deposed, or subpoenaed, no contacts by
the investigator now in charge to interview or communicate with those
witnesses with further evidence whatsoever.
e. In one case, the investigator ignored a list of a dozen
witnesses, and spoke instead to an employee in an involved
department, who was new, and obviously had no history and no
knowledge of the case, which many other employees with more seniority
and experience did have knowledge of, and were listed in the
witness/source list that the investigator chose to ignore. The
investigator in this case was quoted, as saying the reason the case
was not going anywhere was that "No one will talk to me." In the
mean time, the whistleblowers were informed by the witnesses on the
list waiting to tell what they knew, that no one had contacted them.
They understandably expressed frustration that the case was not being
worked.

It seems that many view things a bit myopically. This is somewhat
understandable due to the level of stress and pressure most
whistleblowers feel, and the lack of energy and time may have to
research and reflect while in the slowly heating pot surrounding
their own particular situation. Good communication and a broader
view are necessary. This is not about just one whistleblower.

The problems we are having are not limited only to one agency or
area. The stories that do break are symptomatic of a much bigger
problem. A problem created not in small part by the corruption and
excesses of those who have been in powerful positions of influence
and control, and position to profit from those corruptions and
excesses. Justice and law enforcement are not being allowed to
function like they are supposed to and that is affecting all of us,
particularly "whistleblowers." -VM

**********************************************************************

From Brasschecktv.com:

The FBI ties up loose ends
After seven years of destroying evidence and intimidating witnesses,
the FBI has finally "caught" the individual responsible for the 2001
anthrax attacks. Or so they say.

Bruce Ivins may or may not have been involved in the anthrax attacks.
Now that he's dead, we'll never know because it will be "case closed."

What we do know for sure is that the anthrax attacks, right on the
heels of 9/11: 1) terrorized Congress and 2) gave Bush/Cheney a
reason to stop the FBI investigation of the 9/11 attacks.

That's right...The FBI stopped the 9/11 investigation before it even
got started. Look it up.

The FBI STOPPED its 9/11 investigation just weeks after 9/11
and "focused" all of its resources on finding the source of the
anthrax attacks.

Seven years later, their heroic efforts have finally born some fruit.

A lone gunman. Dead by his own hand. With the noble G-Men hot on his
sinister trail.

Cased closed. Move along. There's nothing to see here folks.

See related videos here: http://www.brasschecktv.com/page/392.html

Boeing expects to weather economy
The Boeing Co. is well positioned to weather the current U.S.
financial crisis, the company's chairman and chief executive
said Thursday, but there could be implications, such as having
to help customers finance airplane purchases.

* Read the full article at:
http://seattlepi.nwsource.com/business/381608_boeing03.html